APHC010548512018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] WEDNESDAY, THE SEVENTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA WRIT PETITION NO: 26045/2018 Between: 1. STEEL PLANT EMPLOYEES UNION, REGD. NO.D-597/82, RINL- VISAKHAPATNAM STEEL PLANT, (AFFILIATED TO CITU AND SWFI) RECOGNIZED, SECTOR-2, UKKUNAGARAM, VISAKHAPATNAM- 530032, REP. BY ITS GENERAL SECRETARY SRI Y.T. DAS. ...PETITIONER AND 1. RASTRIYALSPAT NIGAM LIMITED, VISAKHAPATNAM STEEL PLANT, REP. BY CHAIRMAN-CUM-MANAGING DIRECTOR, ADMINISTRATIVE BUILDING, VISAKHAPATNAM, ANDHRA PRADESH - 530031. 2. EXECUTIVE DIRECTOR, P AND IR, VISAKHAPATNAM STEEL PLANT (RINL), ADMINISTRATIVE BUILDING, VISAKHAPATNAM, ANDHRA PRADESH - 530031. 3. RASTRIYALSPAT NIGAM LIMITED, VISAKHAPATNAM STEEL PLANT REP BY ITS GENERAL MANAGER (HR), ADMINISTRATIVE BUILDING, VISAKHAPATNAM, ANDHRA PRADESH - 530031. 4. REGIONAL LABOUR COMMISSIONER CENTRAL, MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, D.NO.14- 39-7, PORT QUARTERS, MAHARANIPETA, VISAKHAPATNAM - 5300 02. ...RESPONDENT(S): Counsel for the Petitioner: 1. PRAKASH BUDDARAPU Counsel for the Respondent(S): 1. VIVEK CHANDRA SEKHAR S 2. HARINATH N (DEPUTY SOLICITOR GENERAL OF INDIA) The Court made the following: 2 ORDER: This Writ Petition is filed under Article 226 of Constitution of India with the following prayer for: “.... a writ of Mandamus, to declare the Proceedings in Ref.No.HR/RR/5(5)/146, dated 20.6.2018 and Ref.No.HR/IR/4- 38/2018/90, dated 30.6.2018 issued by the Respondents 1, 2 and 3 and set aside the same by declaring the same is illegal, arbitrary and violative of Article 14 and 21 of the Constitution of India and Section 12 (3) of the Industrial Disputes Act and the Rules made thereunder.” 2. Heard Sri Buddarapu Prakash, learned counsel for the Petitioner- Employees Union and Sri S.Vivek Chandra Sekhar, learned Standing Counsel for Respondent Nos.1 to 3. 3. Learned counsel for the Petitioner/Employees’ Union would submit that the employees herein are working in non-executive category in RINL. The impugned proceedings were issued for recovery of excess amount of HRA which was taken by the employees of the Petitioner-Union. Learned counsel would further submit that, the alleged excess payment of HRA is relating to the period from 2004 to 2008. It is submitted that there is a settlement dated 27.09.2001 between the Union and RINL and in view of the said settlement, they have received the HRA. Learned counsel would finally submit that, in the light of the judgment of the Hon’ble Apex Court in State of Punjab and others vs. Rafiq Masih & others1, excess amount which is alleged to have been paid to the employees of the Petitioner-Union cannot be recovered since it was paid through a Tri-Party agreement. 1 AIR 2015 SUPREME COURT 696 3 4. Learned Standing Counsel for Respondent Nos.1 to 3 vehemently opposed the petition and would submit that a circular for recovery of excess payment of HRA was given following the directions issued by the Government of India. Hence, prayed for dismissal of the petition. 5. At this stage, it is beneficial to extract the judgment in Rafiq’s case (supra), wherein, with regard to the permissibility of the employer for recovery from the employees, it was held as under: “It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 6. Considering the submissions made and a fair look at the material placed on record, there is some force in the contention of the learned counsel for the Petitioner that this amount was not received by the Petitioners on mis- representation or by playing fraud. Admittedly, they have received the HRA 4 @ 17.5% in pursuance of their tri-party settlement between the Union and RINL in the year 2001. 7. It is pertinent to mention that, subsequent to the judgment of the Hon’ble Court in Rafiq’s case (supra), the Government of India had issued a memo to all Public Sector Enterprises to follow the directions issued in the said judgment with regard to the recovery of any excess amount from the employees. Further, by reiterating the above judgment, the Hon’ble Apex Court in Jogeswar Sahoo & Others vs. The District Judge, Cuttack & Others2, considered the case of the Stenographers in District Judiciary of Cuttack, Orissa with regard to the same issue. 8. In view of the foregoing discussion and the judgments referred to supra, since the employees of the Petitioner-Union are working in non-executive category and as they are squarely falling under the purview of the Rafiq’s case (supra), this Court is of the view that, the impugned proceedings issued for recovery of excess payment of HRA from them is not tenable. 9. In the result, the Writ Petition is allowed and the Proceedings in Ref.No.HR/RR/5(5)/146, dated 20.6.2018 and Ref.No.HR/IR/4-38/2018/90, dated 30.6.2018 issued by Respondent Nos.1 to 3, are set aside. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed. ________________________________________ Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA Date:07.05.2025 Dinesh 2 2025 INSC 449 5 HON’BLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA W.P.No.26045 of 2018 Dt.07.05.2025 Dinesh